November 9, 2005 and After: Republicans Insert ‘Stealth Provision’ into Patriot Act Reauthorization, Cuts Senate out of US Attorney Appointment Process

Brett Tolman. [Source: ABC4 (.com)]Late in the evening, Brett Tolman, a young member of the Senate Judiciary Committee’s Republican staff, receives an e-mail from the Justice Department’s Congressional liaison, William Moschella. The e-mail instructs Tolman to quietly insert a provision in the USA Patriot Act reauthorization bill that would eliminate a 120-day limit for “interim” US attorneys to serve without Senate confirmation. In essence, the provision would allow such “interims” to serve indefinitely, cutting the Senate entirely out of the process of naming US attorneys and allowing the attorney general to make political appointments without oversight. Tolman replies, “I will get the comprehensive fix done.” He slips the provision into a draft of the bill while it is in conference committee. None of the members notice the provision, and it is part of the bill as signed into law in March 2006 (see March 9, 2006). Tolman himself is one of the first beneficiaries of the new provision, becoming the US Attorney for Utah. When the new provision comes to light in early 2007, both chambers of Congress vote overwhelmingly to repeal it. This is one of numerous “stealth provisions” the White House will have inserted into legislation with the help of compliant Congressional Republicans and staffers. [Savage, 2007, pp. 316]